Antonio Fitzgerald Cox v. State

Affirmed and Memorandum Opinion filed March 19, 2009

Affirmed and Memorandum Opinion filed March 19, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00696-CR

NO. 14-07-00697-CR

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ANTONIO FITZGERALD COX, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause nos. 1084332 & 1084331

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, Antonio Fitzgerald Cox, of two offenses of aggravated assault and found two enhancement paragraphs to be true.  The jury assessed punishment at twenty-seven years= confinement for each offense, with the sentences to run concurrently.  On appeal, appellant contends the prosecutor improperly commented on appellant=s failure to testify, and the trial court erred by admitting evidence of third-party threats against the complaining witnesses.  We affirm.

                                                               BACKGROUND

On December 31, 2004, the complainants, Wonda Harris and her son Jeremy, noticed appellant congregating with other men in a vacant lot directly across the street from the complainants= home.  After seeing appellant drinking and shooting his gun into the air, Jeremy contacted the police.  Apparently in retaliation, appellant later returned to the complainants= house with a gun.  He made vulgar and disparaging remarks about Wonda, prompting Jeremy to Arush at@ appellant.  Appellant shot Jeremy in the leg, fracturing the teen=s femur, and then shot Wonda in the chest.  Wonda and Jeremy were transported to the hospital, and both recovered from their injuries. Police officers arrived at the scene and, after a struggle, eventually subdued appellant, who was described as Acombative.@  It was determined that, at some point, appellant had received a fresh laceration consistent with a Astab wound.@

Appellant was charged with two counts of aggravated assault, to which appellant pleaded Anot guilty.@  A jury convicted appellant on both counts, and further found the allegations in two enhancement paragraphs to be true.  For each offense, appellant was sentenced to confinement for twenty-seven years, with both sentences to run concurrently.  This appeal ensued.

                               ALLEGED COMMENT ON FAILURE TO TESTIFY

In his first two issues, appellant contends that, during closing argument, the prosecutor improperly commented on appellant=s failure to testify at trial, in violation of his constitutional and statutory rights.^[1] We disagree.

A defendant has a constitutional right against self-incrimination at both the guilt-innocence and punishment phases of trial.  Wilkens v. State, 847 S.W.2d 547, 553 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1005 (1993).  The United States and Texas Constitutions, as well as Texas statutory law, forbid the prosecution from commenting directly or indirectly on a defendant=s decision not to testify.  See Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); Bethel v. State, 842 S.W.2d 804, 808 (Tex. App.CHouston [1st Dist.] 1992, no pet.); U.S. Const. amend. V; Tex. Const. art. I, ' 10; Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).

To violate the right against self-incrimination, the implication that the comment refers to the defendant=s failure to testify must be clear.  Bustamante, 48 S.W.3d at 765.  Thus, reversal is not warranted if the prosecutor=s comment might be construed as an implied or indirect allusion to the defendant=s failure to testify.  Oliva v. State, 942 S.W.2d 727, 734 (Tex. App.CHouston [14th Dist.] 1997), pet. dism=d, improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998); Bethel, 842 S.W.2d at 808.  Instead, the prosecutor=s comment is improper if it could only be construed as referring to the defendant=s silence.  See Jordan v. State, 897 S.W.2d 909, 912 (Tex. App.CFort Worth 1995, no pet.).  Stated differently, an impermissible argument must have left the jurors with the necessary implication that they have just heard a comment on the defendant=s failure to testify.  Darby v. State, 922 S.W.2d 614, 618 (Tex. App.CFort Worth 1996, pet. ref=d).  If a prosecutor=s comment is ambiguous and can be interpreted either as a proper comment or as an improper reference to the defendant=s failure to testify, we may conclude that the jury understood only the proper interpretation.  Campbell v. State, 900 S.W.2d 763, 767 (Tex. App.CWaco 1995, no pet.) (citing Gardner v. State, 730 S.W.2d 675, 700 (Tex. Crim. App. 1987)); Wells v. State, 634 S.W.2d 868, 873 (Tex. App.CHouston [1st Dist.] 1982, pet. ref=d, untimely filed).

The test is whether the prosecutor=s argument was manifestly intended to be, or was of such a character that the jury would naturally take it to be, a comment on the defendant=s failure to testify.  Bustamante, 48 S.W.3d at 765; Oliva, 942 S.W.2d at 734.  In applying this standard, we analyze the prosecutor=s remark from the standpoint of the jury.  See Staley v. State, 887 S.W.2d 885, 895 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1020 (1995).  We must also consider the context in which the comment was made, in light of the facts and circumstances of the case.  Bustamante, 48 S.W.3d at 765; Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim. App. 1975).

Appellant=s challenge is to the following statements during the State=s closing argument:

[Appellant] was so combative.  He was so belligerent that the police had to use force to get him under control.  If this was a man that, oh, I was stabbed, it was me, why wouldn=t he call the police?  Why wouldn=t he stay at the scene?  Why wouldn=t he come up when he saw the cops, go, Thank God. Here is my gun.  Let me tell you what happened.  No.  That=s not what he did.^[2]

Reviewing this closing argument from the jury=s standpoint, however, we conclude that the prosecutor=s comments clearly were directed at appellant=s silence during the investigative stage of the encounter and prior to the time of his arrest, instead of his failure to testify at trial.  See Short v. State, 671 S.W.2d 888, 890B91 (Tex. Crim. App. 1984); Cuddy v. State, 107 S.W.3d 92, 96 (Tex. App.CTexarkana 2003, no pet.);  Greenwood v. State, 740 S.W.2d 857, 859 (Tex. App.CDallas 1987, no pet.); Durant v. State, 688 S.W.2d 265, 266 (Tex. App.CFort Worth 1985, pet. ref=d).

Appellant acknowledges that the prosecutor=s comments were intended to describe an imaginary conversation between appellant and the arresting police officers. He suggests, however, that the prosecutor=s use of the word Ayou,@ as emphasized in the above quotation, denotes a shift in emphasis to appellant=s silence during trial. However, we decline to hold that the word Ayou@ must be read as a reference to the jury, either in the context of this case or as a general rule.  As the Texas Court of Criminal Appeals has explained:

There is . . . no particular Atrigger@ word or phrase that makes any jury argument automatically improper.  Rather, any objectionable argument should be evaluated on a case-by-case basis for what it would Anecessarily and naturally@ mean to a jury when taken in the full context of its utterance.  What determines the impermissibility of a reference to the defendant=s failure to testify is not the use of AI@ or Ahe@ or Ashe@ or any other word, but rather the entirety of the prosecutor=s statements, taken in the context in which the words were used and heard by the jury.

Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007) (emphasis added).  When considered in the context of this case, the prosecutor=s remarks reasonably can be construed as an attempt to dissuade the jury from concluding that, in shooting Jeremy, appellant acted in self-defense.

Both parties raised the subject of self-defense during voir dire.  The jury was then presented with evidence indicating that, at the time of the shootings, JeremyCwho may have been drinkingCwas angry and Arushed at@ appellant in an effort to fight him.  When the police officers arrived on the scene, it was discovered that appellant had received a fresh stab wound of indeterminate etiology.  In fact, appellant asked the trial court to submit a self-defense instruction to the jury.  See Tex. Penal Code Ann. ' 9.31 (Vernon Supp. 2008).  Appellant=s request was denied.  However, during closing argument, appellant=s counsel invited the jury to speculate about the case of appellant=s stab wound, which he mentioned twice.

During the State=s closing argument, then, the prosecutor responded that self-defense was not an issue for the jury to decide:

You know, [appellant=s counsel] is an excellent attorney.  He took a case that isn=t a good case for him.  That really, at first glance, looks like it is going to be about self-defense and then when you look at the jury charge, there is nothing about self-defense even in there.  That issue isn=t even before you to decide whether or not [appellant] acted in self-defense.

When considered in light of the facts and circumstances of this case, the challenged remarks clearly refer to appellant=s failure, prior to his arrest, to inform the police that he was acting in self-defense.  Because the prosecutor=s comments pertain to appellant=s silence after arrest, not his failure to testify, the trial court properly overruled appellant=s objection.  See Cuddy, 107 S.W.3d at 96; Greenwood, 740 S.W.2d at 859.

Therefore, we overrule appellant=s first two issues.

                                       EVIDENCE OF THIRD-PARTY THREATS

Appellant=s remaining two issues deal with the admission of evidence of threats made against the complaining witnesses, were they to testify against appellant at trial.  Specifically, Jerome HarrisCJeremy=s brotherCtestified that, after appellant was arrested, appellant=s daughter drove past the complainants= house, holding a handgun and threatening Ato shoot [their] house up.@  In addition, Jeremy=s father, Fred Shepherd, similarly testified that one of appellant=s friendsCa man referred to only as ABlack@Cdrove by the complainants= house and promised to Akill [them] all@ should appellant be convicted. Appellant objected to both witnesses= testimony.  On appeal, in his third issue, appellant contends this testimony was inadmissible under Rule 404(b)Cas irrelevant extraneous-offense evidenceCand Rule 403, because the evidence was unfairly prejudicial.  In his fourth issue, appellant claims that the admission of this evidence also violated the Confrontation Clause contained in the Sixth Amendment to the United States Constitution.^[3]

A.        Relevance and Unfair Prejudice

Generally, we review a trial court=s admission of evidence under an abuse of discretion standard.  Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).  A trial court does not abuse its discretion if its evidentiary ruling was within the Azone of reasonable disagreement@ and was correct under any legal theory applicable to the case.  See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); Bargas v. State, 252 S.W.3d 876, 889 (Tex. App.CHouston [14th Dist.] 2008, no pet.). Because the trial court is usually in the best position to decide whether evidence should be admitted or excluded, we will uphold its ruling unless its determination was so clearly wrong as to lie outside the zone within which reasonable persons might disagree.  See Winegarner, 235 S.W.3d at 790; Hartis v. State, 183 S.W.3d 793, 801B02 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

Evidence of other crimes, wrongs or acts may be admissible under Rule 404(b) if the evidence has relevance apart from character conformity, such as Aproof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.@  Tex. R. Evid. 404(b).  This list of permissible uses is illustrative, but not exhaustive.  Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007); Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006).

Initially, the State asserts that Rule 404(b)=s exclusionary provision does not apply because  the evidence pertained to the acts of third parties, and not the appellant.  See McKay v. State, 707 S.W.2d 23, 32 (Tex. Crim. App. 1985) (AIf the evidence fails to show . . . that the accused was connected to the offense, then evidence of an extraneous offense is not established.@); Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d) (AEvidence of an extraneous offense necessarily involves evidence of prior criminal conduct by the defendant.@) (emphasis added).  However, in 2002, the Court of Criminal Appeals urged a broader reading of Rule 404(b) to include those acts of third parties that may reflect on the character of the accused.  See Castaldo v. State, 78 S.W.3d 345, 348B49 (Tex. Crim. App. 2002).^[4] It is questionable whether the testimony about threats implicated appellant=s character, so as to invoke Rule 404(b), because, as both parties acknowledge, there was no evidence indicating appellant knew aboutCmuch less promptedCthe threats against the complainants= family.  In this case, we need not decide whether the evidence of third-party acts falls within Rule 404(b)=s coverage, because we hold that the proffered evidence was relevant apart from any tendency to show character conformity, anyway.

The Court of Criminal Appeals has repeatedly held that evidence of threats against a witness may be admissible to explain the witness=s prior inconsistent statements or testimony.  See Villarreal v. State, 576 S.W.2d 51, 58 (Tex. Crim. App. 1978); Antwine v. State, 572 S.W.2d 541, 543 (Tex. Crim. App. 1978); Brown v. State, 505 S.W.2d 850, 855 (Tex. Crim. App. 1974).^[5] As the Court of Criminal Appeals explained in Antwine:

[I]t appears that the testimony in question here was elicited on redirect examination by the prosecutor after the appellant, on cross examination of this witness, had established that she had, at a prior trial, refused to testify on the grounds of self incrimination.  On redirect examination the prosecutor was allowed to show that the witness was in jail at the time she exercised this right and that persons in jail had threatened to hurt or kill her when she returned to jail if she testified against the appellant.  From this it appears that the testimony was allowed to enable the witness to explain why she had refused to testify at a prior trial after the appellant had injected this prior act as an attempt to refute and discredit her testimony.  The trial judge properly allowed this explanation.  AThe defendant or any other witness is entitled to explain any fact tending to create a distrust of his integrity or truthfulness.@

572 S.W.2d at 543 (citations omitted).

The State did not introduce the evidence in question during its case-in-chief. Instead, the evidence of threats was offered during appellant=s case-in-chief, after appellant sought to discredit Wonda=s and Jeremy=s testimony that they were the only members of the Harris household who were present at the time of the shooting.  To accomplish this end, appellant called Jeremy=s twin brother, Jerome Harris, who testified that he and his father were also present during the shooting.  Appellant also called the twins= father, Fred Shepherd, to testify.  Fred insisted he was not at home at the time; however, appellant presented other evidence indicating that Fred had previously admitted to witnessing the shooting.  Then, during closing argument, appellant=s counsel stressed that this inconsistency raised questions about Wonda=s and Jeremy=s credibility.

We hold that the evidence of threats against the Harris family was relevant to explain the inconsistencies in the witnesses= testimony.  Evidence of threats against any witnesses to the shootings would tend to explain Wonda=s and Jeremy=s motivation to potentially understate the number of their family members that, in fact, may have witnessed the shootings.  Therefore, Rule 404(b) would not exclude this evidence of threats, which was relevant apart from any tendency to demonstrate character conformity.  See Tex. R. Evid. 404(b); Villarreal, 576 S.W.2d at 58; Antwine, 572 S.W.2d at 543.  Our analysis does not necessarily end there, however, because evidence that satisfies Rule 404(b) may still be inadmissible under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice.  See Prince v. State, 192 S.W.3d 49, 56 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d); Thomas v. State, 137 S.W.3d 792, 795 (Tex. App.CWaco 2004, no pet.).

Rule 403 provides that evidence, although relevant, may still be Aexcluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@  Tex. R. Evid. 403.  The presumption is that relevant evidence will be more probative than prejudicial.  Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006); Thomas, 137 S.W.3d at 795.  A trial court that undertakes a Rule 403 analysis must balance the inherent probative value of the proffered evidence and the proponent=s need for the evidence, against the following counterfactors:

$          the likelihood that presentation of the evidence will be cumulative or will consume an inordinate amount of time; and

$          any tendency of the evidence to suggest decision on an improper basis, to confuse or distract the jury from the primary issues, or to be given undue weight by a jury not properly equipped to evaluate its probative value.

See Gigliobianco v. State, 210 S.W.3d 637, 641B42 (Tex. Crim. App. 2006).  We hold that the trial court, after balancing these considerations, could reasonably have concluded that Rule 403 did not mandate exclusion of the evidence of threats.

1.         Probative Value

This factor focuses on Athe evidence=s probativeness or how compellingly the evidence serves to make a fact of consequence more or less probable.@  State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).  Inherently, evidence that a witness has been threatened by a third person is not necessarily probative, in and of itself, of whether a defendant has committed the charged offense.  In this case, however, the prosecution offered  two witnesses to the shooting:  Wonda and Jeremy.  Both claimed they were the only two witnesses to the aggravated assault. Therefore, to establish that the charged offense had occurred, the State=s case-in-chief depended upon the jury=s believing their testimony. Therefore, the trial court reasonably could have concluded that the evidence that the two key eyewitnesses had been threatened, which would explain inconsistencies in their testimony, was indirectly probative of all of the elements of the charged offense.

2.         State=s Need for the Evidence

This factor Aencompasses the issues of whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue.@  Id. at 441.  Here, the prosecution offered two eyewitnesses to prove the appellant=s commission of a crime, and appellant=s counsel impeached the credibility of both witnesses by demonstrating inconsistencies in their testimony.  In this case, then, the trial court reasonably could have concluded that the State=s need for the testimony about threatsCthe only evidence available to explain the witnesses= inconsistent accounts of who was present during the shootingCwas considerable.  Therefore, we conclude this factor also weighs in favor of admissibility.

            3.         Undue Delay and Needless Presentation of Cumulative Evidence

This factor examines the time necessary for the proponent to develop and present the evidence, during which the jury will be distracted from considering the charged offense.  See id.  In this case, the evidence of threats that was presented to the jury consumes all of forty-three lines of testimony, that is, less than two complete pages in the record.  Therefore, the trial court reasonably could have concluded that it was unlikely that presentation of this evidence would consume an inordinate amount of time.  See Stephenson v. State, 255 S.W.3d 652, 662 (Tex. App.CFort Worth 2008, pet. ref=d) (concluding that, when evidence comprised only four pages in record, Athe jury was drawn away from the indicted offenses only briefly.@).  In addition, because each witness testified to threats made by a different person,^[6] the trial court could fairly conclude that the presentation of evidence would not merely repeat evidence already admitted.

4.         Unfair Prejudice and Confusion of the Issues and/or Jury

Rule 403 does not exclude all evidence that may be prejudicial to a party but, instead, only that which poses a danger of Aunfair@ prejudice.  Mechler, 153 S.W.3d at 440.  Unfair prejudice refers to the tendency that relevant evidence may tempt a jury into finding guilt on an improper basis, for reasons apart from proof of the offense.  See id.; Gigliobianco, 210 S.W.3d at 642.  Here, because there was no evidence linking appellant to the threats, the danger of unfair prejudice to the appellant was low.  See Castaldo, 78 S.W.3d at 350 (AThe danger of prejudice may be much lower when evidence of a third party=s extraneous acts is offered.@); Brown, 505 S.W.2d at 856; Thomas, 137 S.W.3d at 795 (AThe danger of unfair prejudice against the defendant is lower when evidence of a third party=s extraneous conduct is offered.@).

In balancing the inherent probative value of the evidence and the State=s need for the evidence against Rule 403=s counterfactors, the trial court reasonably could have concluded that the evidence was not unfairly prejudicial and did not have a tendency to suggest a decision on an improper basis or to confuse or mislead the jury.  Therefore, we cannot say the trial court abused its discretion by overruling appellant=s Rule 403 objection.  We overrule appellant=s third issue.

B.        Confrontation Clause

Finally, appellant devotes his fourth issue to arguing that the admission of evidence of ABlack=s@ threat against the complainants= family deprived appellant of his constitutional right to confront witnesses against him.^[7] See U.S. Const. amend. VI (AIn all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.@).  Generally, the Confrontation Clause bars the admission of out-of-court Atestimonial@ statements, unless the (1) declarant is unavailable to testify, and (2) the defendant had a previous opportunity to cross-examine the declarant.  Campos v. State, 256 S.W.3d 757, 761 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d).

As a threshold matter, we must determine whether the statement in question is testimonial or nontestimonial in nature.  See id.  We review a constitutional legal ruling, including whether a statement is testimonial, under the de novo standard of review.  See id.; Dixon v. State, 244 S.W.3d 472, 481 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).  The determination of whether a statement is testimonial is decided Aby the standard of an objectively reasonable declarant standing in the shoes of the actual declarant.@  Wall v. State, 184 S.W.3d 730, 742B43 (Tex. Crim. App. 2006). 

The statement in question consists of an out-of-court threat uttered by ABlack@ to the Harris family.  Specifically,ABlack@ is said to have remarked, while driving past the Harris=s home, that A[i]f something happened to [appellant] that he was going to . . . kill [them] all.@  Appellant asserts that this statement is Atestimonial@ in nature, but appellant offers no explanation or analysis to support that opinion.  See Tex. R. App. P. 38.1(h).  We disagree with appellant=s conclusion.

Generally, a statement is considered to be Atestimonial@ if it was a solemn declaration made for the purpose of establishing some fact.  Dixon, 244 S.W.3d at 481 (citing Crawford v. Washington, 541 U.S. 36, 51 (2004)).  Although the United States Supreme Court declined to explicitly define the term Atestimonial@ in Crawford, it described a Acore class of >testimonial= statements@ that includes (1) ex parte in-court testimony, (2) affidavits, (3) depositions, (4) confessions, (5) custodial examinations, and (6) statements made under circumstances that would lead an objective witness to reasonably believe that the statement could be used at a later trial.  See Crawford, 541 U.S. at 51B52.

The statement in question was not made to a police officer or court official but, rather, was uttered to Fred Shepherd under circumstances that would not lead an objectively reasonable witness to believe that the statement would be available for use later at trial.  See id. at 52.  In similar settings, other Texas courts have concluded that such statements were not Atestimonial@ in nature.  See Mims v. State, 238 S.W.3d 867, 872 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (holding that decedent=s early-morning statements to friend were not testimonial); King v. State, 189 S.W.3d 347, 359 (Tex. App.CFort Worth 2006, no pet.) (concluding that statements made to friends during conversations about how victim had died and about disposing of victim=s body were non-testimonial); Campos v. State, 186 S.W.3d 93, 97 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (holding that statements frantically made by complainant to neighbor in middle of night were not testimonial).

We conclude the testimony does not fall within any of the classes of testimonial statements described in Crawford.  541 U.S. at 51B52.  Therefore, we hold the trial court did not violate appellant=s constitutional confrontation right by admitting evidence of the threat made by ABlack.@  We overrule appellant=s fourth issue.

                                                                CONCLUSION

Finding no error in the appellate record, we affirm the trial court=s judgment.

/s/      J. Harvey Hudson

Senior Justice

Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.^*

Do Not Publish.  Tex. R. App. P. 47.2(b).

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            ^[1]  In his brief, appellant specifically complains about the trial court=s failure to declare a mistrial, although appellant did not request a mistrial on that basis.  See Tex. R. App. P. 33.1. Instead, we will liberally construe appellant=s argument as challenging the trial court=s adverse ruling on appellant=s objection to the prosecutor=s remark.  See Tex. R. App. P. 38.9; Sanchez v. State, 98 S.W.3d 349, 355 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (AIf the court is able to ascertain the nature of the complaint from the argument, the issue will be preserved for appellate review.@).

            ^[2]  Emphasis added.

            ^[3]  Appellant also objects to the evidence as hearsay and as violative of the Texas Constitution. However, appellant offers no argument or analysis to support these claims, which we hold to be inadequately briefed.  See Tex. R. App. P. 38.1(h); Wyatt v. State, 23 S.W.3d 18, 25 n.7 (Tex. Crim. App. 2000).

            ^[4]  See also Lucky v. State, No. 05-02-00108-CR, 2003 WL 40670, at *5 (Tex. App.CDallas Jan. 6, 2003, no pet.) (mem. op., not designated for publication) (ACastaldo establishes (1) that acts of third parties may reflect on the character of the appellant, and (2) if they do, they are to be excluded under rule 404(b) in the absence of any applicable exception.@) (citation omitted).

            ^[5]  See also Ayres v. State, 105 Tex. Crim. 15, 17B18, 284 S.W. 960, 960 (1926); Thompson v. State, 35 Tex. Crim. 511, 523, 34 S.W. 629, 630 (1896).

            ^[6]  Although Jerome indicated during voir dire examination that he had heard threats from both appellant=s daughter and ABlack,@ his testimony before the jury was limited to the threats made by appellant=s daughter. Fred=s testimony before the jury, by contrast, was confined to the threats uttered by ABlack.@

            ^[7]  Appellant raises a similar complaint with respect to the evidence of his daughter=s threats against the Harris family.  However, because appellant did not object to that evidence on Confrontation Clause grounds, that objection is not preserved for our review.  See Dewberry v. State, 4 S.W.3d 735, 752 n.16 (Tex. Crim. App. 1999); Oveal v. State, 164 S.W.3d 735, 739 n.2 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

            ^* Senior Justice J. Harvey Hudson sitting by assignment.